Jackson promises ‘open mind’ on fixed recoverable costs

Lord Justice Jackson, who has previously strongly advocated a blanket extension of fixed costs, yesterday insisted that he will lead a new review of fixed recoverable costs ‘with an open mind’.

After inviting written evidence or submissions to assist the review, Jackson told a London Common Law and Commercial Bar Association event last night that he must now ‘listen very carefully’ to the submissions he receives and ‘carefully examine’ the evidence respondents choose to lodge.

Jackson told the event that he has appointed a panel of 13 assessors, including two economists.

He said: ‘I have got to consider how high the regime of fixed costs should go, what figure, what categories of case it should apply to, what about judicial reviews… I will need to consider how we deal with disbursements. The bar [is] a major disbursement, expert fees as well.

‘How should they be accommodated in a fixed costs regime? There is a great deal of detail to be worked out. I shall consider very carefully the evidence which comes in.’

Jackson said not all his assessors were sympathetic to his proposals, adding that ‘all points of view’ would be represented by them.

He told the event: ‘I hope and believe introducing a regime of fixed costs for a raft of cases above the fast-track will promote access to justice and will be of benefit to the wider community – a view I have always expressed. But I shall approach all of your submissions and observations with an open mind.’

Written evidence and submissions must be sent by Monday 16 January. Jackson will publish his recommendations on 31 July. A government consultation will follow.

Jackson told the event that costs budgeting is an essential element of any programme to make the costs of litigation proportionate.

‘Litigation is a commercial enterprise,’ he said. ‘There are no other commercial projects which people [enter] without a budget. If you do not have a regime of fixed costs, some form of costs management or costs budgeting is essential.’

Jackson noted that fixed costs have been introduced in the Intellectual Property Enterprise Court, which has since seen an ‘upsurge’ in work.

He said: ‘Some three-and-a-half years have now elapsed since other reforms I recommended have been implemented. There’s a suggestion [that the] proposal which I made, that we should review fixed costs for bigger cases, is now appropriate.

‘A number [of reforms] have bedded in or are in the process of bedding in. It’s therefore appropriate to give serious consideration to fixing recoverable costs in the lower regions of the multi-track.’

He added: ‘Commentators never miss a chance to stick a few knives in me. If my persecutors [took] the trouble of reading the report… they will see my proposals are exactly what I have been arguing for since day one.’

What an odd way parting comment. The criticisms of his previous proposals are that he never engages with service users, doesn't address or consider any warnings about his proposals and ploughs on regardless, leading to all of the problems everyone had identified if he had ever bothered to listen. This led to chaos in the RCJ where they had to suspend budgeting to avoid CMCs being delayed, and chaos following Mitchell where they needed to change the CPR to allow extensions after his zero tolerance approach again brought the system to a halt. They have also changed the CPR to address the issue of budgeting children's PI cases which he was previous warned about but ignored.

In short, the criticism is that he never listens to anyone.

His answer? 'Just remember folks, I never change my mind'!? That is the problem, not the solution.

It's a world of post-truth justice where facts, evidence and informed opinions are worth nothing compared to the gut reaction of one man, who keeps on getting it wrong.

If one is knocked over when riding to work to recover PSLA, LOE and so one while having a monetary aspect is not commerce, it is restitution.

If one's builder's are cowboys (something I have had to suffer) then obtaining redress is not commerce see above (and also revenge).

However, let's carry his (in my view flawed analogy forwards) and say in a commercial matter the party wants to budget, well . . . errr. the solicitor should give their client and estimate and they can then budget from this.

As for dealing with unreasonable or disproportionate costs, the Courts manage this.

I like how his 'open minded' review of the impact of fixed recoverable costs will include "how high the regime... should go, what categories of case..." etc etc

So it's not a review of the impact. A review of the impact would imply looking at the regime from a completely impartial, subjective viewpoint to see whether and to whom it has been beneficial or detrimental, and weighing up whether those benefits/detriments are reasonable and acceptable bearing in mind the overall requirement to provide people with access to justice. If that impartial and subjective review were to find that the system is working perfectly in all ways and/or that any detrimental effects are sufficiently and significantly outweighed by any beneficial effects, then and only then should any consideration be given to whether and to what extent it should be expanded.

It sounds (although I would never suggest such a thing as being the case) that a finding that the impact of fixed recoverable costs has been more than satisfactory is a foregone conclusion - as others have suggested I suspect there will be a brief going through the motions, plenty of self back patting followed by an announcement on the expansion of the regime, largely or wholly in line with what LJ Jackson (and the insurance industry) has pushed for all along.

Farewell 16 year career as a Law Costs Draftsman, it's been emotional...

"Having carefully considered all of the evidence and submissions I recommend that there be no extension if the Fixed Recoverable Costs Scheme".

Place your bets. I am trekking the Sahara in March to raise £ for Lords Taverners charity for disadvantaged children. All proceeds go there- so visit my Just Giving page. I will pay out personally if that is indeed the recommendation.

Fixed recoverable costs will see an end to experienced experts but the cowboys will have a field day.If the costs are fixed for different levels of damages what about court fees.If the range is say £25000 to £50000 then the court fee could vary by £1250.I guess it will all depend on the level of the fixed costs but we know they are unlikely to be generous.

'He added: ‘Commenters never miss a chance to stick a few knives in me. If my persecutors [took] the trouble of reading the report… they will see my proposals are exactly what I have been arguing since day one.’

And there I feel resides the problem. Your proposals have been crap since day one